APPELLANTS FALL SHORT IN TWO EN BANC CAV RULINGS

[Posted March 20, 2007]  The Court of Appeals hands down two en banc opinions today, both affirming criminal convictions in cases involving search and seizure issues.  The cases are Williams v. Commonwealth and Glenn v. Commonwealth.

In Glenn, the court rekindles the blazing fireworks of last summer’s panel decision, where Glenn’s conviction was reversed after a strongly-worded majority authored by Judge Humphreys, and an equally strong dissent from Judge Kelsey.  The court reverses the panel decision, by a vote of 6-4, with Judges Benton, Elder, and Clements joining Judge Humphreys in the dissent.  One key aspect of the ruling is that the court also vacates the panel majority’s finding that harmless error analysis doesn’t apply where the defendant enters a conditional guilty plea.  That issue is now, once again, unaddressed by the court’s jurisprudence. 

Today’s opinions, by the way, are no less forceful.  Here’s the first sentence of the dissent:  “From a nod of the head from an elderly stroke victim, the majority finds apparent authority, as a matter of law, to search not merely a home, but any closed containers found within.”  (At this point, the closet journalist inside me asks the usual question, designed to identify captivating writing: “Wanna know more?”  In my view, almost everyone with an interest in constitutional issues will answer yes.)  The closed container, by the way, is a backpack, which the police opened and searched, without a warrant, before arresting Glenn in another location.

My earlier coverage of Glenn, at the panel stage, is here (scroll down to the next-to-last case).

Williams involves the question of whether police may conduct a warrantless search of unoccupied premises during a “protective sweep” of the property to obtain possession of a weapon.  The court reveiws the law relating to such sweeps (they’re permissible on less than probable cause; the police must merely have a reasonable suspicion that a dangerous person might be inside), noting that it is a “constitutional hybrid” that’s “premised on exigent circumstances.”

In that vein, Williams didn’t help his cause by speaking to police from an apartment in which he had barricaded himself, telling them that he was “heavily armed” and would shoot anyone who tried to enter.  Most of us would call that an exigent and dangerous circumstance.  The rub is that Williams, after hours of negotiation, left the apartment peacefully and unarmed; his weapon was only found when the officers went into the apartment afterwards (still without a warrant) and found Williams’s handgun exactly where they had told him to leave it.  So now, you may be wondering, why can’t the officers go and get a warrant for any weapons that might be inside?  What’s the rush?

The answer is that, based on information obtained from some neighbors, police believed that there might be someone else still in the apartment.  This forms the heart of the dispute between the majority, authored by Judge Haley, and the dissent, again the product of the prolific pen (actually keyboard; he’s very computer literate) of Judge Humphreys.  The vote this time is 7-3, with Judges Benton and Elder again taking the minority view.  The dissent calls the majority on the assertion that the police could have had a reasonable suspicion that someone else was inside the house and was a danger to police or bystanders.

If you have even a passing interest in search and seizure law, both of these opinions offer lots of interesting issues and argument.  And both of them, in my view, are also excellent candidates for further review in the Supreme Court.